AS* Catchwords Extradition - application for review of Magistrates decision - whether applicant required to produce evidence to Magistrate or to Attorney-General only - whether Magistrate required to be satisried that evidence has been produced to Attorney-General - whether notice by Attorney-General must accord strictly with wording of warrant by applicant. Extradition tFore1iqn States) Act 1966 ss.15, lo, 17, 17A Extradition «Federal Republic ot Germany) Requiations Reg.4 FEDERAL REPUBLIC OF GERMANY v. JENS INGO SCHLIESKE & ANOR No. G421 of 1986 Coram: Sweeney, J. Date : 24 Uctober, 1986 Place: Heard in Sydney, judgement delivered in Melbourne, with simultaneous release in Sydney. IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G 421 of 1986 ) GENERAL DIVISION ) BETWEEN: FEDERAL REPUBLIC OF GERMANY Applicant AND: JENS INGO SCHLIESKE First Respondent KEVIN SYDNEY ANDERSON Second Respondent THE COURT: Sweeney J. oo DATE 24 October, 1986 PLACE : Heard in Sydney, judgment delivered in Melbourne, with simultaneous release in Sydney. MINUTE OF ORDER THE COURT ORDERS THAT - i. The decision of the second respondent made on 26 September 1986 that the first respondent be released be quashed. 2. The first respondent be committed to prison in the custody of the Keeper of the Prison at Malabar in the State of New South Wales to await the warrant of the Attorney-General of the Commonwealth of Australia for the surrender of the first respondent to the applicant. Note: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules. ad : ' IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION No. G 421 of 1986 BETWEEN: FEDERAL REPUBLIC OF GERMANY Applicant SND; JENS INGO SCHLIESKE First Respondent KEVIN SYDNEY ANDERSON Second Respondent THE COURT: Sweeney J. DATE 24 October, 1986 PLACE : Heard in Sydney, judgment delivered in Melbourne, with simultaneous release in Sydney. REASONS FOR JUDGMENT 1. on 6 February 1985 a warrant for the arrest of Jens Ingo Schlieske «"the first respondent"» was issued by the Federal Republic of Germany ("the applicant") alleging chat he had committed a number ot narcotics related offences. 2. A warrant for the apprehension of the first respondent under 5.16 of the Extradition 'Foreign States) Act 19566 ("the Act": was issued by in Sydney Mr K.R. Webb, a Magistrate, on 28 duly 1986. 3. on 12 August 1986 the first respondent was apprehended in Sydney pursuant to that warrant. 4, un 22 September, 1986 a notice under 3.15(1)(b), of the ad 2. Act, was executed by the Attornev-General ot the Commonwealth, informing any Magistrate before whom the first respondent was brought that a requisition had been made-to the Attorney-General by the applicant for the surrender to 1t ot the first applicant. The first respondent appeared at the St James Local Court, Sydney before Mr, K.R. Webb on 13, 19 and 29 August 1986 and on 3, 15, 22 and 24 September 1986. on each occasion, except 24 September, the first respondent was remanded to the subsequent date. On each occasion bail was not applied for and was refused. On 24 September the matter was transferred to the Central Court, Giverpool Street, Sydney where the hearing of the requisition by the applicant for the surrender of the tirst respondent commenced before Mr K.S. Anderson «"the second respondent"). The matter was adjourned, part-heard, to the said Central Court on 26 September, 1986. At the conclusion of the hearing on that day, the second respondent found that he was not satisfied, in the terms of s.17(6)i(b) of the Act, that the first respondent was liable to be surrendered to the applicant and ordered that the first respondent be released forthwith in accordance with the provisions of s.17:\6). An application for a stay of that order was made by the solicitor for the applicant. The second respondent held that he had no power to grant such a stay. On 30 September 1986 the present application to this Court was brought pursuant to the Act, in which the ah 3. applicant sought the rollowing orders:- (al (by An order reviewing the decision ot the second respondent made on Zo September, 1986 that the -first respondent be released pursuant to the provisions of s.17(6) of the Act: and An order under s.1716) of the Act that the first respondent be committed to prison to await the warrant of the Attorney-General for his surrender to the applicant. lou. On 2 October 1986 Mr K.R. Webb, issued a further warrant for the apprehension of the first respondent. li. The matter came before this Court on 2 October 1986 and on 3 Gctober 1986 Sheppard J. made an order in the following terms - (a) 'bo (Cc) The first respondent be kept in custody by the Keeper ot the Prison at Malabar in the State of New South Wales and remain ain custody until further order. On 13 Uctober 1986 the first respondent be released to the custody of an officer of the Australian Federal Police and be bought forthwith in custody to this Court. The hearing of the application be fixed for 13 October 1986 at 10.15 a.m. When the hearing commenced on i3 October, the solicitor for the second respondent stated that his client would submit to any order to be made by the Court, but wished to be heard in due course on the question of costs. He later stated that he made no application for costs. The applicant 1is.as follows - English translation otf the warrant issued by the "The detendant Jens Ingo Schlieske, born on June 28th, 1960, in Frankfurt am Maun, German national, present whereabouts unknown, shall be remanded to confinement before trial. Defendant 1s urgently suspect to have, during the years of 1983 and i984, at Frankturt am Main, and other places, domestically and abroad, by means of six (6) seperate (sic) offences, acting commercially, a) wrongfully obtained, possessed and tratticked narcotic drugs, in not negligible quantity, without the permit required by Section 3 Narcotics Control Law; b) in conjunction therewith, unlawfully imported narcotic drugs, in not neglibible quantity, without permit under Section 3 Narcotics Control Law; c) in conjunction therewith, unlawtully established an organization, purposes and activities whereof were designated for the commission of criminal offences, or wrongfully participated as a member 1n such organization. 1. During the first half of 1983, 1n three (3) cases, defendant S$ c h 1 1 e8 k e smuggled large quantities of hashish from Spain into the Federal Republic of Germany. a? On the tirst trip, jointly with unidentified accomplices, Sc hil 21.es ke carried ten (10) kilogrammes of hashish. bi on the second trip, jointly wath unidentified accomplices 5c hlies k e imported fifteen (L5) k1llogrammes of hashish, cq) and on the third journey twentyfive (25) kilogrammes of hashish, into the Federal Republic of Germany. Of said cannabis resinS chiliesk e sold seven (7) kilogrammes to. witness RUB. Moreover, he imposerted for Witness RUB two point one (2.1) kilogrammes of hashish into the Federal Republic of Germany. Evidence: Witnesses RUN and STANZEL, and investigations by Criminal Investigation Division. 2. From late 1984 through January 1984, in four (4) instances, the defendant 5S c h 1i e@ 8s k e individually sold to witness MANGOLD twohundred (200) grammes of hashish. Evidence: Witness MANGOLD, and investigations by Criminal Investigation Division. The initial shipment of hashish occurred about late Julyvearly August 1983, While the separately prosecuted BENDER had financed said shipment with -circa 70,000.00 Deutsch Mark, ENGLERT and BERTHOLD drove two (2) OPEL GT to Spain, where already sojourned detendant Sc hil ie sk e@and the s@parately prosecuted Mrs. BERTHOLD. Into one of said two vehicles, namely the white Opel GT, license number FB-N 93, Schi1ies ke installed circa onehundred (100) kilogrammes of hashish. This vehicle was subsequentiy drive back to Frankfurt am Main by JENSEN. On the return trip he was escorted by ENGLERT driving the second silver-grey Opel GT, license number F-JJ 101, and by Mrs BERTHOLD, who operated one of Schlies- ke s Mercedes cars, with same as a passenger. In September 1983, Mrs. BERTHOLD and Mrs. WOSKOWSKI drove to Marbella, together with Schlies ke and the separtely prosecuted Klaus HESS. By way of vehicles for said trip were utilized a white Opel GT bearing white stripes, license number F-WI 793, and a red VW Golf. In Spain, S53chl iesk e concealed an unknown quantity of hashish inside the red Golt, which was then driven, as pre-arranged, by Mes. BERTHOLD and Mrs. WOSKOWSKI across the Spanish - French border. Shortly before the French-German border, Sc hli1e s keand HESS stowed the hashish into two knapsacks, carrying on foot across the "green" border, and storing it for one day in the flat, jointly tenented by Mrs. BERTHOLD and Mrs. WOSKOWSKI and Sc hlieske. The third shipment of hashish occurred during Octobre/Novembre 1983. About onehundred (100) kilogrammes of hashish were installed into the white Opel GT bearing red strips, by Schlies- k e and the separately prosecuted ENGLERT. Said vehicle had been left behind, during the second trip to Spain. Already prior to this second trip. Schlies k e had registered it in the name of separately prosecuted Mrs. WOSKOWSKI, with her consent and her knowledge of Schlies ke's schemes. Upon installation of the hashish, Mrs. BERTHOLD and Mrs. WOSKOWSKI drove the Opel GT first across the Spanish-French border, then also across the Franco-German border, into Frankfurt am Main. From there the vehicle was taken to Limburg by $ c- hli oes k e and ENGLERT, who had escorted the shipment in other vehicles, and the hashish was carried in three (3) knapsacks into the house of Robert BENDER, 1.¢., to the attic. In early June 1984, in order to prepare the fourth shipment of hashish, BENDER and defendant S c h l- 1es k @e travelled to Spain. After their return, 8 ch 121es ke established contact to JENSEN and VOLLMERHAUS, as well as, the seperately prosecuted HESS, who all pledged their participation in the transport of hashish. While BENDER assured for the performance of the hashish shipment Schlies - - -KkK e@ of aloan ot circa 60,000.00 Deutch Mark; JENSEN made available for the intended transport Opel GT, license number F-WI 793, registered in his name since April Il8th, 1984. Jointly with S ch l- 1 es ke and HESS, VOLLMERHAUS the travelled to Spain, where onehundred fiftythree point five (153.5) kilogrammes of hashish were installed in the Open oT. With the promissed funds of 60,000.00 Deutsch Mark and a spare part for the Opel GT BENDER equally arrived in Spain, After repair of the Opel GT, VOLLMERHAUS drove said vehicle via France into the Federal Republic of Germany, where he was stopped at border crossing station Neuenburg, and the hashish was partly seized from the rear hollow spaces of said vehicle. Defendant joined with aforesaid individuais, in order to purchase large quantities ot hashish in Spain, at ava1rlable opportunities, smuggle same into the Federal Republic of Germany in rigged vehicles, selling i1t at a profit in Germany, in order to finance a lucrative way of life from the proceeds. Evidence for 3. through 6.: Statements by co-defendants WOSKOWSKI, BERTHOLD and VOLLMERHAUS , investigations by Criminal Investigation Division, and the seized hashish. Felonies and Crimes, punishable under:- Sections 1 Paragraph 1, 3 Paragraph 1 Number 1, 29 Paragraph 1 Number 3 Paragraph 3 Numbers 1 and 4, 30 Paragraph 1 Numbre 1 and 30 Paragraph 1 Number 4 Narcotics Control Law; Sections 53, 129 Criminal Code. Said offences are punishable under the following provisions of German criminal law:- Section 1 Paragraph 1 Narcotics Control Law: (1) Narcotic drugs within the meaning of this law shall be the substances and preparations enumerated in Addendums [I to III. Section 3 Paragraph 1 Narcotics Control Law: (1) A permit by Federal Board of Health shall require, whosoever desires to:- 1. grow, manufacture, traffic therewith, import, export, dispose of, sell, otherwise place into circulation, acquire, without trafficking game, or 2. produce excepted preparations (Section 2 Paragraph 1 Number 3). Section 29 Narcotics Control Law: (1) (2) (3) By a term ot imprisonment, not to exceed four (4) years, or by fine, shall be punished, whosoever ,- ad, grows, manufactures, traffics, without trafficking same, imports, exports, disposes of, otherwise Places into circulation, acquires, or obtains in any other manner narcotic drugs, without a permit under Section 3 Paragraph 1 Number 1; 2. produces an excepted preparation (Section 2 Paragraph 1 Number 3), without a permit under Section 3 Paragraph 1 Number 1; 3. posesses narcotic drugs, without having obtained same by virtue of a permit under Section 3 Paragraph 1; 4. makes available fund or other assets to another, for the illicit trafficking narcotic drugs or for their unlawful manufacture; 5. carried through narcotic drugs, in violation of Section 11 Paragraph 1 Phrase 3; 6. 1n violation of Section 13 paragraph 1, a} prescribes narcotic drugs, b) administers of makes available narcotic drugs for instant use. 7. in violation of Section 13 Paragraph 2, dispenses narcotic drugs from a pharmacy or from veterinary supply; 8. advertises narcotic drugs, ain violation of Section 14, Paragraph 5; 9. renders false or incomplete intormation, in order to attain prescription of a narcotic drug, personally or for an animal; 10. for personal gain or publicly advises of an opportunity for unauthorized use, acquisition or unauthorized disposal of narcotic drugs, obtains for or affords such opportunity to another, or induces another into unauthorized use of narcotic drugs; or 11. violates a statutory instrument under Section 11 Paragraph 2 Phrase 2 Number 1 or Section 13 Paragraph 3 Phrase 2 Numbres 1 or 3, insofar as such refers to said provisions of criminal law for specific elements of the offence. In particularly aggravated cases, the punishment shall be a term of imprisonment, not less than one (1) year. As arule, a particularly aggravated case shall be presumed, whenever the principal 1. acts commercially, in cases under Paragraph 1 Numbers 1, 4, 5, 6, or 10; 2. jeopardizes the health of others, by means of acts designated in Paragraph 1 Numbres l, 6 or ; 3. being a person over 21 years of age, dispenses or relinquishes for instant use narcotic drugs to a person, less than 18 years of age; 4. tratficks narcotic drugs, 1n not negligible quantity, posesses of disposes of them, in not - negliibible quantity; ™ 14) through (6) ....., Section 30 Narcotics Control Law: Criminal Offences (1) By means of a term of imprisonment, not less than two (2) years, shall be punished, whosoever- 1. grows, manufactures or trafficks (Section 29 Paragraph 1 Number 1) Narcotic drugs, without permit under Section 3 Paragraph 1 Number 1, and thereby acts as member of a gang, which has joined for the continual perpetration of such offences; 2. acts commercially, 1m cases under Section 29 Paragraph 3 Number 3; 3. selis, disseminates or relinquishes to another for instant use narcotic drugs, and thereby wantonly causes the death of such other; or 4. imports narcotic drugs, i1n not negligible quantity, without permit under Section 3 Paragraph 1 Number 1. (2) In less aggravated cases the punishment shall be a term of imprisonment, of not less than three (3) months and not to exceed five (5) years. Addendum 1 (to Section 1 Paragraph 1) (non-marketeable narcotic drugs) reads as tollows:- eo eeee cannabis resin (hashish) the excreted resin from plants belonging to the cannabis species. Section 53 Criminal Code: I. If anyone has committed several criminal offences, which are tried at the same time, and has thereby incurred several terms of imprisonment limited in time or several fines, then one total punishment shall be imposed. TI. Provided a term of imprisonment limited in time coincides with a fine, then one total punishment shall be imposed. However, the court may also impose a fine seperately; in such cases, if there are to be imposed fines for several criminal offences, then one total fine shall be imposed, insotar. III. Section 52 Paragraphs 3 & 4 shall apply appropriately. Section 129 Criminal Code; I. Whosoever establishes an organization, purposes and 9. activities whereof are designated for the commission of criminal offences, or whosover participates as member, recruits for or supports such organization, shall be punished by a term of Lmprisonment, not to exceed five (5) years, or bya fine. II. .Paragraph 1 shall not be applied- = i. whenever the organization purports to be a political party, which was not declared unconstitutional by Federal Supreme Court; 2. whenever commission ot criminal offences 1s a purpose or an activity of merely subsidiary importance; ar 3. insofar, as the purposes and the activities of the organization concern criminal offences under Sections 84 through 87. III. The attempt to establish an organization, as defined in Paragraph 1, shall be punishable. IV. Provided principal 1s one of the ringleaders or instigators, or if there prevails a particularly aggravated case, then there shall be imposed a term of imprisonment, not less then six (6) months and not to exceed five (5) years. V. The court may desist from imposing punishment, under Paragraphs 1 and in case of persons involved, whose guilt is negligible and whose involvement is of subsidiary importance. VI. The court, within it's discretion, may mitigate the punishment (Section 49 Paragraph 2) or may desist from imposing punishment under said provision, whenever the principal:- 1. puts forth a voluntary and earnest effort to prevent contained existence of the organization, or commission of a criminal offence commensurate to the goals thereof; or 2. voluntarily divulges his/her knowledge to official authority, in sufficient time, so that the criminal offences, the plans wherefor he/she was aware of, could still be prevented; provided such principal attains his/her objective ot preventing continued existence of the organization, or if such is achieved without he/her overt efforts, then he/she shall not be punished. s/Dimde Magistrate at the Amtsgericht (sic) RAISED SEAL OF AMTSGREIGHT (sic) Bound together with the warrant, there was a statement in the following terms - "STATEMENT __ 10. The Uffenses indicated in the Warrant of Arrest issued by Frankfurt on Main Circuit Court on Feb. 6, 1985 will be prescribed under the Statute of Limitation at the earliest by Feb. 6, 1990 as for the crimes and offenses under the Narcotics Enforcement Law. The provisions of the German penal Code of May 15, 1871 as amended by the Publication of Jan. 2, 1975 (Federal Gazette I, Page 2) have, concerning Prescription, the following wording: Section 78 I. The Statute of Limitation excludes the prosecution of the offense and the ordering of measures (Section 11 Subs. I Number 8). II. ... TIL. Inasfar as prosecution is barred by the Statute of Limitation, the time of prescription will be 1. eee 2. vee 3. ten years for offenses punishable with a maximum of over five and up to ten years. 4. five years for offenses punishable with a maximum of over one year and up to tive years. VI. ... Section 78 a The time of prescription begins as soon as the offense has been completed ... Section 78 c I. The time of prescription shall be interrupted by Le wee 2. wee 3. ee. 4. 18. 5. the warrant of arrest, the warrant order to prison, the order to produce and any judicial decisions containing such orders. 6. aes Be. wee 10. ... ll. ... 12. ..- II. we III. After each interruption the time of prescription begins to run again. ll. Iv. ... Vv. wae The interruption ot the time of prescription took place by virtue of the Warrant of Arrest issued by Frankfurt on Main Circuit Court - Division 931 - on Feb. 6, 1985. (Kraushaar) District Attorney (SEAL: OFFICE OF PUBLIC PROSECUTION AT FRANKFURT/MAIN DISTRICT COURT)" There followed photographs, fingerprints and a description of the first respondent. The relevant parts of s.16 of the Act read as follows - "16. Issue of warrants. (1) Where - (a) a Magistrate is authorized by the Attorney-General by a notice under paragraph 15.1) (a) to issue a warrant for the apprehension of a fugitive; or (b) an application is made as prescribed to a Magistrate for the issue of a warrant for the apprehension of a fugitive who is, or is suspected of being, in Australia, and the Magistrate is informed, by information on oath or affirmation, that a warrant for the apprehension of the fugitive has been issued in a foreign state and 1s in force, the Magistrate shall issue a warrant for the apprehension of the fugitive in accordance with the appropriate form prescibed for the purposes of this sub-section. (2) 22. (3) Where a Magistrate issues a warrant under this section without having been authorized by the Attorney-General by a notice under paragraph 15(1)(a) to 1ssue the warrant, the Magistrate shall forthwith send to the Attorney-General a _ report stating that he has issued the warrant and the evidence produced to him on the application for the warrant." L2. A report under s.loi3) was forwarded to the Attorney-General who in due course issued a notice pursuant to s.15(li(b) of the Act. Section 15 of the Act provides for the giving of notice by the Attorney-General, and reads as follows:- "5.15. Notice by Attorney-General. (1) Subject to sub-section (2), where a requisition for the surrender of a fugitive who is, or is suspected of being, in or on the way to Australia is made to the Attorney-General by a foreign state, the Attorney-General may, in his or her discretion- (a) aif a warrant for the apprehension of the figitive has not been issued under section 16-by notice in writing in accordance with the form prescribed for the purposes of this paragraph, state that the requisition has been made and authorize the issuing by any Magistrate of a warrant for the apprehension of the fugitive; or (b) aif a warrant for the apprehension of the fugitive has been issued under section 16 and a person has been apprehended under the warrant-by notice in writing in accordance with the form prescribed for the purposes of this paragraph and directed to any Magistrate before whom the person may be brought, inform the Magistrate that the requisition has been made. (2) The Attorney-General shall not give a notice under sub-section (1) in respect of a fugitive whose surrender is requested by a foreign state if the Attorney-General 1s of the opinion that- (a) the fugitive is not liable to be surrendered to the foreign state; or (b) the offence to which the requisition for the surrender of the fugitive relates is, or is by reason of the circumstances in which i1t 15 alleged to have been committed or was committed, an offence of a political character or that the requisition for his surrender has 1n tact been made with a view to try or punish him for an offence ot a political character." Section 17(6) provides for a hearing before a Magistrate and 13. 1s in the following terms:- "If the person was apprehended under a warrant issued in pursuance of an authority by the Attorney-General in a notice under paragraph 15(1)(a) or the Magistrate receives a notice by the Attorney-General under Paragraph 15(1)(b) and- > (a) there 1s produced to the Magistrate- 1i) um the case of a person who is accused of an extradition crime- (A) a duly authenticated foreign warrant in respect of the person issued in the foreign state that made the requisition for the surrender of the person or a duly authenticated copy of such a warrant; (B) a duly authenticated statement in writing setting out a description of each offence for which the surrender of the person is requested and the penalty applicable to each such offence; and (C) a duly authenticated statement in writing setting out all the acts or omissions in respect of which the surrender of the person is requested; or (ii)in the case of a person who 1s alleged to have been convicted of an extradition crime-such duly authenticated documents as provide evidence of the conviction, of the sentence imposed on the person or of the intention to impose a sentence on the person and of the extent to which a sentence imposed on the person has not been carried out, and, 1f the application of this Act to the foreign state that made the requisition for the surrender of the person 1s subject to any limitations, conditions, exceptions or qualifications, any other documents required by those limitations, conditions, exceptions or qualifications to be produced; and (b) the Magistrate is satisfied, after taking into account any evidence properly adduced by the person, that the person is liable to be surrendered to the foreign state that made the requisition for the surrender, the Magistrate shall either- (c) by warrant in accordance with the forn prescribed for the purposes of this l4. sub-section, commit the person to prison ta await the warrant of the Attorney-General for the surrender ot the person; or (d? ain the case of a person- 12) who has been charged with an offence that 1s alleged to have been committed in - Australia, being a charge that has not been disposed of; or (11):who has been convicted in Australia of an offence and is not in custody in respect of that offence, on the person 3 entering anto such recognizance as the Magistrate thinks appropriate, grant ball to the person pending the signing of a warrant by the Attorney-General for the surrender of the person, but otherwise the Magistrate shali order that the person be released." Section 17A provides for a review of the Magistrate s decision, Its relevant provisions are:- "17A. Review ot Magistrate's decision. ¢i») Where under sub-section 1716), a Magistrate orders that a person be released, a foreign state may apply to the Federal Court, or to the Supreme Court of the State or Territory in which the person was apprehended, for a review of the order, and the Court may review the order. (2) Where, after a person 1s released pursuant to an order under sub-section 17:6), a foreign state applies under sub-section (1) for a review of the order, a Magistrate may issue a warrant for the apprehension of the person in accordance with the form prescribed for the purposes of this sub-section. (3)... (4)... (5) Upon a review of the order, the Court shall have regard only to the material that was before the Magistrate, (7) Upon the review of an order, the Court may confirm or vary the order, or quash the order and make a new order in substitution for the order so quashed." 15. When the second respondent made the decision under review and when the hearing before this Court commenced, Regulation 4(1) of the Extradition (Federal Republic of Germany) Requlations provided as follows:-- - = "4.(1) a person is not liable to be surrendered to the Federal Republic of Germany in respect of an offence to which a requisition by that state for the surrender of the person relates unless an act or omission by the person evidence of which is produced in connection with the requisition, or any equivalent act or omission, would, 1f it took place, at' the time when the requisition was made, in, or within the jurisdiction of, the part of Australia where the person is found, constituted an offence against the law in force in that part of Australia - (a) that 1s not a service offence (within the meaning of the Defence Force Discipline Act 1982) other than an offence against sub-section 6111) of that Act; and (b) the maximum penalty for which is, or includes, imprisonment for not less than 12 months". This Regulation came into force on 28 November 1985. Section 11(2) of the Act is as follows:- "Where the regulations for the time being in force provide that this Act applies in relation to a foreign state subject to any limitations, conditions, exceptions or qualifications, the Act applies in relation to that state subject to those limitations, conditions, exceptions or qualifications." The applicant contended that it was entitled to the grant of a warrant by the second respondent upon the production to him of a "duly authenticated foreign warrant and the duly authenticated statements prescribed by 3.17(6)(A) (B) and (C),there having been no evidence adduced before him by the first respondent. It supported this argument by reference to the form of s.17(6) before it was amended in 1985 to read as has been set out above. Section le. 17:16) then provided by sub-sec.i(bi(1) that there should be produced to the Magistrate, "in the case of a person who 13 accused of an extradition crime-such evidence as would, in the opinion of the Magistrate, according to the law in force in the State or Territory of which he 13 a Magistrate, justify the trial of the person if the act or omission constituting that crime had taken place in, or within the jurisdiction of, that State or Territory;" The applicant submitted that the plain meaning of s.17(6), especially when considered in the iight of this history of the legislation, was that an applicant such as the present was no longer required to produce to the Magistrate evidence of the kind specified in the old 5.17(6)(bitip. The applicant also submitted that pursuant to s.15AB of the Acts Interpretation Act 1901 (Commonwealth), consideration might be given to the second reading speech of the Attorney-General in introducing the bill which led to the enactment of the present s.1716) by way of contirming the ordinary meaning of the provision here in question. In that speech the Attorney-General said:- "The first amendment (to the Bill) will enable Australia to conclude extradition arrangements with countries which do not require the requesting country to furnish evidence of guilt but rather information as to the allegations against the tugitive. ... The extradition -- arrangements ot most European countries which are reflected in the European Convention on Extradition do not require the production of prima facie evidence". The first respondent contended that the effect of Regulation 4 and 8.1112) of the Act was to introduce a requirement that 17. evidence be produced to the Magistrate that the act or omission alleged against a fugitive would, if 1t took place at the time when the requisition to the Attorney-General was made for the surrender of-a-fugitive in or within the jurisdiction of the part of Australia where the fugitive was found, constitute an offence against the law in force in that part of Australia. The applicant's reply was that the prescription in Regulation 4 related to the production of evidence to the Attorney-General when a requisition was made to him that a notice be issued pursuant to s.15 of the Act. In my opinion, the submissions of the applicant upon the construction of the Act should be accepted. The terms of s.17(6) of themselves make no requirement for the submission of evidence to the Magistrate other than the production of the warrant and the necessary statements, a silence which is rendered the more eloquent when one notes the presence of such a requirement in the predecessor of that sub-section. This meaning, being the ordinary meaning conveyed by the text of the provision, taking into account its context in the Act and the purpose or object underlying the Act, is confirmed by the terms of the second reading speech. The first respondent's submissions based upon Regulation 4 and s.11(2) should, un my opinion, be rejected. The scheme of the Act 138 that where a Magistrate issues a warrant without having been authorised by the Attorney-General by a notice under s.15(1)(a), the Magistrate shall forthwith send to ib. hima report stating that he has issued the warrant and the evidence produced to him on the application for the warrant (see s.1613)). The warrant in the present case was issued on 28 July 1986 and the-Attorney-General's notice was given on 22 September, = Pursuant to s.15, where a requisition for the surrender of a fugitive 1s made to the Attorney-General by a foreign state, the Attorney-General may in his or her discretion, 1f a warrant for the apprehension of the fugitive has been issued under s.16 and a person has been apprehended under the warrant by notice in writing, intorm any Magistrate by notice that the requisition has been made. Sub-section 12) provides that the Attorney-General shall not give such a notice if he or she 1s of opinion that:- "(al the fugitive is not liable to be surrendered to the foreign state; or (b) the offence to which the requisition for the surrender of the fugitive relates to, or 18 by reason of the circumstances in which it is alleged to have been committed or was committed, an oftence of a political character or that the requisition for his surrender has in fact, been made with a view to try to punish him for an otfence of a political character." In my opinion, the etfect of Regulation 4 and s.11(2) 18 to add to the matters to be considered by the Attorney-General in the exercise of his discretion. For present purposes, the important words of Regulation 4 are "evidence of which 1s produced in connection with the requisition". Under s.15, the requisition is made to the Attorney-General, not to the Magistrate. It is for the Attorney-General to consider whether or not to act upon the requisition, in the light of 5.15 and of Regulation 4 and s.11(2) considered together. In my opinion Regulation 4 should not he construed as importing a requirement that there shall be produced 19. to the Magistrate who deals with a notice, evidence of the character specified in the regulation. During the course of the hearing, the Court was advised by counsel for the applicant that Requlations 2 and 4 were to be repealed and new Regulations substituted. On 15 October 1986 the Court was told that this had been done with effect from that date. The amended Regulations 2 and 4:1) read as follows:- "2. In these Regulations, unless the contrary intention appears- 'relevant act or omission , in relation to an offence to which a requisition tor the surrender of a person relates, means an act or omission by the person (ar that is, in or in connection with the requisition, alleged to have taken place; or (b) of which evidence 15 produced in connection with the requisition; 'requesting state' means the Federal Republic of Germany; the Act' means the Extradition (Foreign States) Act 1966". "d., cl) A person is not liable to be surrendered to the requesting state in respect of an offence (in this sub-regulation referred to as the 'first-mentioned offence ) to which a requisition by that state tor the surrender of a person relates if- (a) had the relevant act or omission in relation to the first-mentioned offence, or any equivalent act or omission by the person, taken place, at the time when the requisition was made, in, or within the jurisdiction of, the part of Australia where the person was found, that act or omission, not being an act or omission that would have constituted an otfence against the ordinary criminal law in force in that part of Australia, would have constituted an offence against the military law of Australia. (Db) had the relevant act or omission in relation to the first-mentioned otfence been alleged to have been committed by the person in, or within the jurisdiction of, the part of Australia where the person was found, the period within which proceedings could, in accordance with the law in force in that part of Australia, have been commenced against the person in respect of the oftence constituted under that law by the act or omission would, at the time when the requisition os ne ' 20. was made, have expired; tc) the relevant act or omission 1n relation to the tirst-mentioned oftence 1s, under the law in force un any part of Australia, regarded as constituting an offence committed by the person, either in whole - -or in part, in, or within the jurisdiction of; Australia or that part of Australia; or id) final judgment has been entered against the person in a toreign state other than the requesting state in respect of an offence against the law of that foreign state constituted by the relevant act or omission in relation to the first-mentioned offence." The applicant and the first respondent joined in asking that the present case be decided upon the basis of Regulation 4 as 1t stood at the time of the decision of the second respondent, and this has been done. The first respondent had submitted that the documents put before the second respondent had not been duly authenticated, as required by 3.26 of the Act, but this argument was abandoned. He also contended that the word "requisition" in Regulation 4(1) referred not only to the requisition to the Attorney-General but also to the subsequent hearing before the Magistrate. In my opinion, 1t did not have that extended meaning. He submitted that those documents did not include a statement in writing "setting out a description of each offence for which the surrender of the person is requested and the penalty applicable to each such offence" within the meaning of s.17(6)(a)\B) of the Act. In my opinion, when one reads the documents as a whole, they clearly meet the requirements of the sub-section. 2i. Contrary to the submission of the first respondent, I do not consider that the second respondent was required to satisfy himself that. the evidence required by Regulation 4 had been produced to the Attorney-General. In my opinion, there was no substance in the various criticisms which the tirst respondent made of the form of the notice given by the Attorney-General. The notice was good on its face and consistent with the documents which accompanied it. All the second respondent was called upon to do was to be satisfied that he had before hima duly authenticated foreign warrant and the duly authenticated statements in writing prescribed by s.17(6)(arci) of the Act. He should have been so satisfied, and as the first respondent adduced no evidence, he should have held that the first respondent was liable to be surrendered to the applicant, and by warrant in accordance with the form prescribed committed him to prison to await the warrant ot the Attorney-General for his surrender to the applicant. The Court orders that: 1. The decision of the second respondent made on 26 September 1986 that the first respondent be released he quashed. 2. The first respondent be committed to prison in the custody of the keeper otf the Prison at Malabar in the State of New South Wales to await the warrant of the Attorney-General of the Commonwealth of Australia for the surrender of the first respondent to the applicant. made. 22. As the applicant sought no order for costs, no order wiil be I certify that this and the preceding twentyone (21) pages are a true copy of the Reasons for Judgment herein of The Honourable Mr. Justice Sweeney. Dated: 24 Octob 1986 _ eS Associate Counsel for the applicant Solicitors tor the applicant Counsel for the first respondent Solicitors for the first respondent Solicitor for the second respondent Mr D. Grieve y.c. Me D.R. Russell > Director of Public Prosecutions Mr R.W. White W.P. O'Brien Crown Solicitor Principal Registry,/ Filing Room N.5.W. Registry. Please remove the last page 'List of Counsel) on judgment "G42l of 1986 Federal Republic of Germany and Jens Ingo Schlieske Kevin Sydney Anderson" and replace with attached page. Note the addition of Counsel for the second respondent Mr J. Middleton. Counsel tor the applicant Mr D. Grieve y.c. . Mr D.R. Russell x Solicitors for the applicant Director of Public Prosecutions Counsel for the first Mr R.W. White respondent Solicitors for the first W.P. O'Brien respondent Counsel for the second Mr J. Middieton respondent Solicitor for the second Crown Solicitor respondent